By Ms. A. SAJIDA MEERA RUMANA
Law is an instrument of the society which includes rules of conduct, action or behaviour of person, made and enforced by the State and the main object of law is to bring peace and stability in the society. Most of the laws are for the living persons or individuals but as we look upon closely we can find that there are also laws for the dead. Decent burial of dead bodies and crimes against the corpse are the two main areas where these laws are made upon. There is a covenant in the Geneva Convention 1949, which states that, “As far as the military consideration allow, such party to the conflict shall facilitate the steps taken to protect the killed”[i]. In India the Constitution deals with the right to have a decent burial. Also, the Indian Penal Code deals with some of the offences related to burial of corpse.
2.RIGHTS OF A DEAD PERSON AND LEGAL REMEDIES
From the earlier times itself the concept is that dead bodies have the right to rest and should not get disturbed in any manner. Most of the civilizations, religions and culture all have accepted this concept and they follow it. In this Modern world as there is a proper system of law and management is in place, we can look upon the rights of a dead person which are recognized under law in India.
2.1. UNDER CONSTITUTION OF INDIA
Constitution is the basic legal document of a country and it explains the fundamental rights and duties of citizens. The protection of life and personal liberty which is guaranteed under Article 21 of the Constitution has been interpreted by the Supreme Court in many instances. There are lots of rights which are included in Article 21 such as the right to privacy, right against solitary confinement, right to legal aid, right to speedy trial etc. The Judiciary in many cases have observed and interpreted that right to have a decent burial is also included in Article 21 of the Constitution. Right to human dignity is not restricted to living human being but is available even after death also. This view was recognized by the Apex Court for the first time in a Public interest litigation[ii]. Later in many cases the court held that Right to human dignity is also a right under Article 21 of the Constitution. In Ashray Adhikar Abhiyan v. Union of India,[iii]the court held that it is the obligation of the State to have a decent burial to the deceased person as per their religious belief. In Parmanand Katara, Advocate v. Union of India & Ors[iv],the Supreme Court held that "right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death. The word and expression 'person' in Article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, the preservation of the dead body and its disposal in accordance with human dignity”. In another important case of Jamuna Das Paras Ram v. State of Madhya Pradesh[v], with reference to Section 392 of the Indian Penal Code the High Court of Madhya Pradesh held that "the word person cannot be so narrowly construed as to exclude the dead body of human being, i.e. the human body must be given the right, irrespective of being alive or dead".
2.2.UNDER THE INDIAN PENAL CODE
Section 297 of the Indian Penal Code reads as "Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both". Thus, the right to decent burial comes under the Indian Penal Code. But who is authorized to decent burial is not mentioned anywhere in the law and generally, this right will go to the living spouse or to the next kin? Recently the Madras High Court in a case of a doctor, who got died due to COVID-19 infection, where a large mob assembled and opposed the burial of the body had observed that “the scope and ambit of Article 21 includes the right to have a decent burial”[vi], the court also invoked and highlighted Section 297 of IPC.
3. INTERNATIONAL COVENANTS AND LAWS ON RIGHTS OF THE DEAD
1. GenevaConvention1949: Article 16 of this covenant states, "As far as military consideration allow, each party to the conflict shall facilitate the steps taken to protect the killed – against ill treatments."
2. Australia's Defence Force Manual, 1994 states, "The remains of the dead, regardless of whether they are combatants, non-combatants, protected persons or civilians are to be respected, in particular their honour, family rights, religions convictions and practices and manners and customs at all times they shall be humanely treated."
3. The UK Military Manual, 1958states"the dead must be protected against maltreatment."
4. The United Nations Commission on Human Rights: The 2005 resolution on human rights and forensic science underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families.
5. Article 25(2) of Universal Declaration of Human Rights, 1948 assures that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including medical care, sickness, and disability.
6. UN Commission on Human Rights in a resolution adopted in 2005, "on human rights and forensic science, the UN commission on Human Rights underlined" The importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families.
The law has not yet defined who is a dead person but it has recognized some rights to dead person as that of a living person. The rights and legal remedies available for a dead person as above mentioned are under Article 21 of the Constitution. Our modern society seems to have difficulty in addressing the issue of dying and death and this fact is reflected in recent incidents. Since the number of crimes against the corpses increasing, it is essential that a law be made for the protection of the same i.e. safeguards the human body, not only when the person is alive, but also when the person is dead. Every person has a right to safety, this includes the safety of his/her body from any harm that may be caused to him/her by a third party and this right being essential, cannot be taken away once a person dies only on the basis that the person is no longer alive and thus is not considered as a person.
[i]Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 16, Aug. 12, 1949, 75 U.N.T.S. 287. [ii]Parmanand Katara v. Union of India & Ors,1989 S.C.R. (3) 997. [iii]Ashray Adhikar Abhiyan v. Union of India, 2002 W.C.P. 143 of 2001. [iv]Parmanand Katara, Advocate v. Union of India, 1989 S.C.C. (4) 286. [v]Jamuna Das Paras Ram v. State of Madhya Pradesh, A.I.R. 1963 M.P. 106 (India). [vi]Suo Moto v. State of Tamil Nadu, W.P. No. 7492 of 2020.